Martinsburg Municipal Court judge OKs restaurant plea

MARTINSBURG, W.Va. - Martinsburg city officials agreed to dismiss charges against the operator of an embattled downtown restaurant Tuesday, setting the stage for the restaurateur to testify against his former business partner in a case involving the placement of gambling machines in an upstairs lounge.

Martinsburg Municipal Court Judge David Alter approved a plea agreement between city officials and Counsellor's Grill LLC restaurant manager Matthew St. Martin during a Martinsburg Municipal Court hearing Tuesday. The agreement calls for St. Martin to testify against Tatra Restaurant Inc., which could face more than $20,000 in fines for installing video lottery machines in an upstairs room of the restaurant at 100 N. College St./200 W. Burke St., despite a city Board of Zoning Appeals ruling against a zoning allowance that could have permitted them.

The company has filed an appeal with the West Virginia Supreme Court, which declined to issue a stay of the city's case Tuesday. In January, Berkeley County Circuit Court Judge David Sanders denied an effort by Tatra owner Carter Craft and St. Martin to prevent the city from prosecuting them, and this month also declined to reconsider his decision following a request by the company.

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The restaurant closed its doors earlier this month, and a temporary use and occupancy permit issued to Tatra expired in January. The company, which seeks to reopen the restaurant, applied for a new permit last week.

The restaurant grossed $2,534 on more than $14,800 played on five machines during the two months they were in operation last year, according to the West Virginia Lottery Commission's Web site. The citation issued by the city carries a penalty of up to $300 a day for each day the machines remain in place.

The state Lottery Commission declined to revoke the company's Limited Video Lottery License last month.

During Tuesday's hearing, lawyers for the city and Tatra Restaurant rehashed arguments previously aired in Circuit Court about the zoning board's ability to prohibit the machines in the absence of a limited video lottery ordinance, which went into effect the day before a citation was issued.

City Prosecutor Andy Blake said the City Council's approval in November of a limited video lottery ordinance was not relevant to the prosecution of the restaurant. Blake said the company violated the city's zoning ordinance.

"This is not a limited video lottery machine question; this is a zoning question," Blake said. "The property is not zoned for a restaurant. It is a special exception, therefore the (zoning appeals board) can place limits on that special exception."

Sanders wrote in his decision that placing the machines in the restaurant was not a continuation of the present non-conforming use of the restaurant, which had been previously opened as the Peppermill, and specialized in catering and banquets.

"On the contrary, the Court finds that the introduction of video lottery machines is not a continuation/extension of a prior existing, non-conforming special exception, rather; it is an expansion of a nonconformity that has never been in existence," Sanders wrote in the concluding remarks of his 11-page order.

Tatra Restaurant attorney Michael Scales, noting the city's ordinances fail to distinguish between full-service restaurants and catering establishments, and citing the previous history of the property, said the city's zoning appeals board has no authority to control the continuation of a property's non-conforming use.

Scales also argued Tuesday the addition of the video lottery machines was not an expansion of the non-conforming use of the property, and said the zoning board's ruling only forbade a lounge and bar and did not specify that the machines were disallowed.

"They never put in an executive lounge; they never put in a martini bar," Scales said. "It does not even mention a decision on limited video lottery machines."

Blake said prior uses of the restaurant did not include video lottery machines.

Alter, who was sitting in for Judge Stephen Kershner, scheduled a court hearing for April 12, ahead of a possible decision by the state Supreme Court to review the case.